{"id":"alj-H202452-2023-02-21","awcc_number":"H202452","decision_date":"2023-02-21","opinion_type":"alj","claimant_name":"Jordan Dodson","employer_name":"Ozark Pizza Co., LLC","title":"DODSON VS. OZARK PIZZA CO., LLC AWCC# H202452 FEBRUARY 21, 2023","outcome":"dismissed","outcome_keywords":["dismissed:3"],"injury_keywords":["ankle"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Dodson_Jordan_H202452_20230221.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Dodson_Jordan_H202452_20230221.pdf","text_length":9903,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H202452 \n \n \nJORDAN DODSON, EMPLOYEE CLAIMANT \n \nOZARK PIZZA CO., LLC, \n EMPLOYER RESPONDENT \n \nINTREPID INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 21,  2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 17, 2023, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Ms.  Karen  H.  McKinney,  Attorney  at  Law,  Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.  A hearing on the motion was conducted on  February 17, 2023, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nWithout objection, the Commission file on this claim has been incorporated herein \nin  its  entirety  by  reference.  Admitted  into  evidence  was  Respondents’  Exhibit  1, \nforms,  pleadings  and  correspondence  related  to  the  claim,  consisting  of  nine \npages. \n\nDODSON – H202452 \n2 \n \n The record reflects the following procedural history: \n On  March  28,  2022,  a  Form  AR-1  was  filed  in  this  case,  reflecting  that \nClaimant purportedly sustained an injury to her ankle at work on March 15, 2022.  \nOn  May  12,  2022, Respondents  filed  a  Form  AR-2,  representing  that  they  had \naccepted  the  injury  as  compensable  and  were  paying  medical  and  indemnity \nbenefits  pursuant  thereto.  Claimant  has  not  filed  a  Form  AR-C.  However,  she \nsent the following to the Commission on April 18, 2022: \nI  Jordan  Dodson  am  Requesting  an  appeal  for  additional  Benifits.  \nThe Amount in Qustion is less than 2,5000, And I know Mediation is \nmandatory.  Claim #H202452 \n/s/ Jordan Dodson 4-18-22 [sic] \n \n An attempt to set up a legal advisor conference failed.  For that reason, this \ncase was assigned to then-Administrative Law Judge Terry Don Lucy on May 11, \n2022.    Prehearing  questionnaires  were  issued  to  the  parties  on  May  12,  2022.  \nRespondents’  counsel  entered  her  appearance  before  the  Commission  on  May \n13,  2022;  and  her  clients  returned  an  executed  Preliminary  Notice  on  May  16, \n2022.    Because  Claimant  did  not  file  either  a  Preliminary  Notice  or  a  prehearing \nquestionnaire  response,  Judge  Lucy  on  June  9,  2022,  returned  the  file  to the \nCommission’s general files. \n No  further  action  on  this  claim  took  place  until  October  31,  2022,  when  \nRespondents  filed  the instant  Motion  to  Dismiss.    Therein,  they  argued that  over \nsix  months  had  elapsed  since  Claimant  requested  a  hearing  without  her taking \nany other action in pursuit of this claim.  They asserted that dismissal was called \n\nDODSON – H202452 \n3 \n \nfor  under  AWCC  R.  099.13  and  Ark.  Code  Ann.  § 11-9-702(a)(4)  &  (d)  (Repl. \n2012).    The  Commission  on  November  2,  2022, wrote  Claimant,  asking  for a \nresponse to the motion  within  twenty (20) days.  The letter was sent via certified \nand  first-class  mail to  the  address  for  Claimant  listed  in  the  file.    She  signed  for \nthe certified letter on November 7, 2022; and the first-class correspondence was \nnot returned.  Nonetheless, no response to the motion was forthcoming from her. \n On January 4, 2023, a hearing on the Motion to Dismiss was scheduled for \nFebruary 17,  2023,  at  12:0 0  p.m.  at  the  Craighead  County  Courthouse  Annex \nBuilding in Jonesboro.  The notice was sent to Claimant by first-class and certified \nmail  at  the  same  address  as  before.    In  this  instance,  the  certified  letter  was \nclaimed by Claimant on January 11, 2023; and as before, the first-class letter was \nnot  returned.  The evidence  thus preponderates that  Claimant  received notice  of \nthe hearing. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nFebruary 17, 2023.  Again, Claimant failed to appear.  But Respondents appeared \nthrough counsel and argued for dismissal of the action under the aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n\nDODSON – H202452 \n4 \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996).  (Emphasis added)  In turn, §§ 11-9-702(a)(4) & (d) read: \n(4)   If   within   six   (6)   months   after   the   filing   of   a   claim   for \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing,  be  dismissed  without  prejudice  to  the  refiling  of  the  claim \nwithin  limitation  periods  specified  in  subdivisions  (a)(1)-(3)  of  this \nsection. \n \n. . . \n \n(d)  If  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing, if necessary, be dismissed without prejudice to the refiling \n\nDODSON – H202452 \n5 \n \nof  the  claim  within  limitation  period  specified  in  subsection  (b)  of \nthis section. \n \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must \nprove by a preponderance of the evidence that dismissal should be granted.  The \nstandard  “preponderance  of  the  evidence” means  the  evidence  having  greater \nweight  or  convincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n No  Form  AR-C  has  been  filed  in  this  case.    That  is  the  means  for  filing a \n“formal  claim.”   See  Yearwood  v.  Wal-Mart  Stores,  Inc.,  2003  AR  Wrk.  Comp. \nLEXIS  739,  Claim  No.  F201311 (Full  Commission  Opinion  filed  June  17,  2003).  \nSee also Sinclair v. Magnolia Hospital, 1998 AR Wrk. Comp. LEXIS 786, Claim No. \nE703502 (Full Commission Opinion filed December 22, 1998)(a claim is “typically” \nfiled via  a  Form  AR-C).    While  a  Form AR-1  was  filed,  that  does  not  suffice  to \ninstigate a claim.  Id. \n Per Ark. Code Ann. § 11-9-702(c) (Repl. 2012): \nA claim for additional compensation must specifically state that it is \na  claim  for  additional  compensation.    Documents  which  do  not \nspecifically  request  additional  benefits  shall  not  be  considered  a \nclaim for additional compensation. \n \n(Emphasis added)  See White Cty. Judge v. Menser, 2020 Ark. 140, 597 S.W.3d \n640. \n My  review  of  the  Commission’s  file  discloses  one  document  sufficient  to \nconstitute a filing of a claim for additional benefits under the standard cited above.  \n\nDODSON – H202452 \n6 \n \nThat  document  is  Claimant’s  April  18,  2022,  hearing  request, “[r]equesting  an \nappeal for additional [b]en[e]fits.” \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because  she has taken no further action \nin  pursuit  of it  (including  appearing  at  the  February  17,  2023,  hearing  to  argue \nagainst  its  dismissal)  since  the  filing  of  her hearing  request.    Thus,  the evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \nit is unnecessary to address the application of § 11-9-702. \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629 S.W.2d 284 (1982)).  Respondents at the hearing asked for a dismissal with \n\nDODSON – H202452 \n7 \n \nprejudice.    But  based  on  the  above  authorities, I  find  that  the  dismissal  of  this \nclaim should be and hereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought  on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H202452 JORDAN DODSON, EMPLOYEE CLAIMANT OZARK PIZZA CO., LLC, EMPLOYER RESPONDENT INTREPID INS. CO., CARRIER RESPONDENT OPINION FILED FEBRUARY 21, 2023 Hearing before Administrative Law Judge O. Milton Fine II on February 17, 2023, in Jonesboro, Craighead Co...","fetched_at":"2026-05-19T23:10:28.670Z","links":{"html":"/opinions/alj-H202452-2023-02-21","pdf":"https://labor.arkansas.gov/wp-content/uploads/Dodson_Jordan_H202452_20230221.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}